14 January 2021
In review of attached open letter by ASAP-NHS (Action for a Safe and Accountable People’s NHS) dated 14th January 2021, a small, independent campaign/pressure group who investigate fatal and criminal failings in the Scottish NHS and justice systems. We believe it has become glaringly apparent innocent individuals are being maliciously targeted by a rogue element in an out-of-control justice system not fit for purpose.
ASAP-NHS member, Roger Livermore, A career regulator and inspector with HSW (8 titles) his understanding and knowledge of health and safety and wider aspects of the law is peerless. He compiled the attached report in the form of open letter, which was also sent to the UK Supreme Court.
Many concerned people; journalists, politicians, commentators, are bewailing of the questionable behaviour in review of separation of powers, the law used as a continuation of political business by other means; And the intention of this clear and concise report is to deliver certainty in what is actually happening – we believe there is evidence of impropriety, which is not only unlawful, it’s contractually ‘illegal’ and a direct violation of Human Rights (a subsection of private rights).
The intention of the attached exhibit in the form of open letter is to save people harmless and to deliver the consideration and promise of certainty. For that certainty we posit 1/13 points below and make mention we only point to contractual ‘legal’ code for the dutiful and diligent examination of private men and women entrusted as Principals in administering the service corporation, and to whom it may concern.
We have a duty to enquire and report major crimes and cover-ups which obstruct lawful investigation, and we focus our attention on privity of contract, consideration and certainty as friends of ASAP-NHS, in review of Scottish prosecutions in the name of the lord Advocate” (and his deputy the Solicitor General). He is always the Scottish Government, and we point to (section 44 Scotland Act 1998). He can never be independent of the government that he is always part of. It is unlawful for government(s) to prosecute (ECHR/Human Rights Act 1998 Article 6, Judiciary and Courts (Scotland) Act 2008).
For certainty of expression in creating this form of correspondence, we irrevocably and unequivocally reject all presumptions and assumptions of (legal) contract period!
(1) Prosecution case produced by the ministerial-led government department COPFS. COPFS as the government is a wholly unlawful body for a prosecution service (unlawful as above).
(2) Any investigation for a prosecution by Police Scotland is under the direction and control of COPFS. Any instructions by the lord Advocate, Solicitor General, COPFS is by the Scottish Government and therefore the investigations are unlawful, null and void.
(3) All Scottish ministers including the law officers are prohibited from directing or exercising other related control over police. There are no exemptions. The law officers are liable for prosecution and conviction for breach of section 5 Police and Fire (Reform) Act 2012 etc.
(4) The two law officers make their decision on prosecutions not on their own but based on advice and information from the government’s COPFS. They are consequently in breach of section 48(5) Scotland Act 1998.
(5) The Scottish judiciary are dependent on the government for cases and the prosecution evidence in court. The judiciary are government-dependent when by law they must be independent. Breach of Judiciary and Courts (Scotland) Act 2008, ECHR, HRA 1998 and a whole raft of law).
(6) In directing Police Scotland. Both the law officers and COPFS are the government and interfering with the independence of those involved in the administration of justice (s1 Judiciary and Courts (Scotland) Act 2008).
(7) In accepting the prosecution cases and evidence provided by the government, the Scottish judiciary are sacrificing the independence if the judiciary. The judiciary are thereby acting unlawfully 2008 Act, ECHR and HRA 1998 Article 6, and other common law.
(8) The case involves the Scottish First Minister, the law officers are her ministers, and COPFS is one of her departments. This is wholly unlawful. The SFM has additional binding collective responsibility for the unlawful law officers and COPFS. The SFM has criminal liability for this situation.
(9) In the case in question, the ‘harmed’ party is the SFM/ Scottish Government, the evidence is also, so too the police, and the prosecution case, and the judiciary is dependent on them. It is about as unlawful as it is possible to get. The government controls both the process and most of the evidence. In effect the government controls the outcome of the Scottish justice system. There can be no lawful prosecution.
(10) By her control of the prosecution and the influencing of the verdict, the SFM is unlawfully influencing the judiciary, and judging herself. Breach of 2008 Act, natural law, natural justice.
(11) The lord Advocate/Government in bringing an unlawful prosecution must be in contempt of court, plus other probable crimes for consideration- abuse of power, obstructing / perverting the course of justice, malicious prosecution. The lord Advocate full-well knows that the prosecution is unlawful. Criminal intent or criminal incompetence, Catch 22.
(12) Large number of offences by the lord Advocate renders him liable to prosecution and conviction. There now needs to be a lawful investigation and prosecution of the law officers and the Crown Agent. The SFM as the head of the Scottish Government and the ‘controlling mind’ appears to be the prime suspect. The situation is rather unusual, but it seems to be the case owing to the legal perversity and unlawfulness of the Scottish prosecution system.
(13) The matters, and officers, require an independent lawful criminal investigation. Normally this would be Police Scotland but there is an intractable conflict of interests, we even currently have the lord Advocate unlawfully prosecuting the Chief Constable. Must be rUK force and prosecutor.
We posit attachment in the form of exhibit (open letter) for the private and dutiful awareness of men and woman entrusted in the capacity of the Principal; and civil servants for the private entity called Scottish Government, and to whom it may concern.
This open letter was never rebutted, which can be referenced and checked with the Supreme Court. This creates controversy – where there is controversy there is equity.
Scottish Government position statements to support the ICCPR “We”, the Scottish Government, (for clarity a government cannot be we) update the United Nations on progress towards implementing and observing international human rights standards by including a distinctive Scottish contribution in formal UK reports. It would be coming the principal Leslie Evans the Permanent Secretary to the Scottish Government. who is responsible for upholding said contribution. Evans is the principal policy adviser to the First Minister and Secretary to the Scottish Cabinet.
Evans is the senior civil servant in Scotland and leads more than 5,000 civil servants working for the Scottish Government, supporting development, implementation and communication of government policies, in accordance with the Civil Service Code. At a UK level, she is a member of the Civil Service Board.
Open Letter Unrebutted
ABSENCE OF A LAWFUL JUDICIARY
LAWFUL JUSTICE SYSTEM
14 January 2021
The law requires that the Scottish judiciary must be independent. In Scotland, the judiciary is almost entirely dependent on the Scottish Government of the day. The Scottish Government controls the judicial processes of prosecutions and the investigation of deaths. The Scottish Government controls almost all the evidence in these judicial processes. In effect the Scottish Government controls the outcome of the Scottish criminal justice system. The judiciary and the justice system are consequentially both unlawful and unconstitutional. This results in them being inevitably dysfunctional, and corrupt, i.e. wrong. The Scottish justice system facilitates and encourages corruption. Justice in Scotland is denied. Examples of the Scottish judiciary’s unlawfulness and failures are the Scottish care homes COVID-19 disaster involving hundreds of preventable deaths (2020/ 21), and the Pan-Am 103 trial and the latest appeal (2000 and 2021). The Judiciary of Scotland states: The independence of the judiciary is a cornerstone of a democratic society and a safeguard for people’s freedom and rights under law. Legislation places a duty on all government ministers; law officers; and members of the parliaments to uphold judicial independence, barring them from trying to exert influence over judicial decisions. Judiciary Scotland Ethics – Independence
It is Scottish Government ministers, the Lord Advocate and the Solicitor General who control the judicial processes of prosecutions and the investigation of deaths. They decide who gets prosecuted and who does not. They decide what is to be done on the handling of deaths in Scotland, and they control the minimal number of Fatal Accident Inquiries (only circa 30 a year). These two ministers also unlawfully make their decisions not on their own (as required by section 48(5) of the Scotland Act 1998) but based on advice and information from the ministerial-led government department COPFS (Crown Office and Procurator Fiscal Service). COPFS is also unlawfully staffed by government officers. The basic errors are compounded by the two government ministers and the government department COPFS constantly and unlawfully directing police investigations. They control almost all the evidence in prosecutions that is available to the courts. The Scottish judiciary are not independent, they are almost wholly dependent on the Scottish Government. As such the Scottish judiciary and the Scottish justice system are unlawful. With the Scottish Supreme Court(s) being part of the Scottish judiciary and justice system and staffed by the same Scottish judges who have long been part of an unlawful justice system, their position is brought into question in respect of competence and legitimacy. Additionally, an immediate issue is that their judges include a former government minister, a Lord Advocate (who apparently would have been in constant breach of the law). They include the spouse of a current minister the present Lord Advocate (who similarly apparently is also in constant breach of the law). The Scottish judiciary’s rejection of the Pan Am 103 (15 January 2020) appeal is a further demonstration of the unlawfulness. The following is a long list bullet-point styled summary of the issues. The position would need to be verified but they will be proved to be correct. There is prosecution-grade evidence readily available to back the main points. This would act as the platform for legal and organisational action to rectify the gross unlawfulness of the Scottish justice system, and of its consequences. This list is a a long list but it will not be exhaustive, it is more than suitable and sufficient:
1. The Lord President of the Court of Session as the head of the Scottish judiciary heads a government-dependent judiciary. He runs an unlawful judiciary (ECHR Articles 1, 2 and 6, the Judiciary and Courts (Scotland) Act 2008; and the Constitutional Reform Act 2005 in the respects that it applies to Scotland).
2. The Lord President presides over an unlawful prosecution system (breach ECHR Article 6 etc). The Scottish prosecution system is run by the Scottish Government when it must be independent of government.
3. The Lord President presides over an unlawful system of investigating deaths (breach ECHR Article 2). The Scottish system of investigating deaths is run by the Scottish Government when it must be independent of government.
4. The Lord President presides over an unlawful system of private prosecutions. As it stands the system is controlled by the Scottish Government, with its minister the Lord Advocate blocking private prosecutions. If the government’s unlawful prosecutor, the Lord Advocate does not prosecute on a particular issue then the people of Scotland have no alternative recourse to prosecution and justice. In all such cases the Lord Advocate unlawfully judges his own actions and inactions. This is a breach of natural law and natural justice. The Lord Advocate once again obstructs the independence of the judiciary (section 1 Judiciary and Courts (Scotland) Act 2008 etc). Compare with rUK. 5. The Lord President presides over a justice system that sanctions the Scottish Government’s unlawful control over what is now Scotland’s only police force, Police Scotland. Evidence in prosecutions and the investigations of deaths is controlled by the government ministers (Lord Advocate and Solicitor General) and a ministerial-led government department COPFS. Scottish courts and the proceedings are reliant on evidence that is controlled by the Scottish Government (breach ECHR and Human Rights Act 1998 Article 6 etc).
7. The Lord President presides over the judiciary and the courts where both the processes and the dominant evidence are government controlled. This combination of government control of both the process and the content results in the government controlling the outcome of the Scottish justice system on prosecutions and the investigation of deaths (ECHR and Human Rights Act 1998 Article 6 etc). 8. With the Scottish Government controlling the judicial process of prosecutions (public and private), there is no lawful system to ensure that any human right in Scotland is positively protected by law (ECHR Article 1). The Lord President and the Scottish judiciary are party to the failure to ensure the protection of human rights in Scotland.
9. With the government control of the judicial processes, the Scottish Government and their Lord Advocate and Solicitor General, unlawfully place themselves and other government ministers beyond the law. By natural law, no-one is allowed to be beyond the law. The Lord President sanctions this highly unlawful position.
10. Again, with the government control of prosecutions and the investigation of deaths, it places the government and its agencies, allies and friends beyond the law. This in particular applies to the Lord Advocate’s intractable unlawful biased position. The current Lord Advocate the Rt Hon James Wolffe QC stated ‘My loyalty is to my government’, The Times (Scotland) April 1st 2017. Of course the correct answer must be ‘the law’, not a government. Mr Wolffe demonstrates his unlawful loyalty and bias by continually shielding his government and its direct report NHS Scotland on the 2,000 reasonably preventable patient safety deaths that occur each year. He is now repeating this shielding with the Scottish care home COVID-19 disaster. The Lord President sanctions this unlawful position, and so fails to uphold the law on these thousands of deaths in Scotland. 1
1. With the government’s control of the system of investigating deaths it enables the Lord Advocate and government department COPFS to cover-up suspicious deaths. The government’s direct report NHS Scotland persistently fails to report patient safety deaths to the government’s Lord Advocate and his government’s COPFS as required by the Lord Advocate’s instruction. The Lord President by his inaction on the unlawful system sanctions the industrial-scale government cover-ups of deaths. This applies to almost all the 2,000 patient safety deaths in NHS Scotland a year. It applies to the hundreds of deaths from COVID-19 caused by infections that have been acquired within NHS Scotland (see the Scottish Government’s Public Health Scotland reports). 12. With the government controlling judicial processes and the government-dependent judiciary, the Lord President sanctions the unconstitutional and consequently unlawful absence of the separation of the powers. Scotland fails a basic test of being constitutional. 13. With its control of the prosecution system, it places the Scottish Government beyond the constraints of the law, and outside the Rule of Law. Scotland would come very low on the World Justice Project Rule of Law Index. The Lord President is content with the Scottish Government being outside the rule of law, and next to bottom in the European league. 14. The main requirements of ECHR and the Human Rights Act 1998 are not complied with in Scotland (ECHR Articles 1, 2, 3, 6, 10, 13, 14, and 17). Scotland is a human rights disaster zone. The Lord President is content with this situation.15. “With the absence of the Rule of Law and human rights law, Scotland fails two of the four criteria of being a democracy (Copenhagen Criteria, which is also adopted in the EU Lisbon Treaty).” The Lord President is content with Scotland not being a democracy.
16. Without the constraints of the law, the Scottish Government is free to choose what law it upholds and complies with and what law it does not. The unconstrained government fails and refuses to comply with the UK-wide law on patient safety, COVID-19, and human rights law. It also does not uphold or comply with the law on the independence of the judiciary. The Lord President fails to act on the absence of major law and fails to act on the government control of what law is upheld. He, the Scottish judiciary, and the Scottish justice system support and promote this anarchic situation.
17. The government’s Lord Advocate failed to refer the COVID-19 care home deaths to a lawful investigator and prosecutor. These hundreds of deaths are associated with his government’s extremely unlawful policy of sending NHS patients into care homes without ensuring that it was safe to do so. It was extremely unsafe and extremely unlawful. The Lord President has failed and refused to act on the Lord Advocate’s unlawful shielding of his government. The Lord President in effect sanctions the cover-up of COVID-19 deaths. He and his judges will be well aware that these hundreds of deaths are not being investigated independently or lawfully. They know very well that Mr Wolffe has an intractable conflict of interest. The Lord President has a duty to make representation to the Scottish Government (section 2 Judiciary and Courts (Scotland) Act 2008). He seems not to have done so. That would seem to place the Lord President in an extremely serious breach of statutory law.
18. One of the biggest failures in public safety and the law is that patient safety is unlawfully not regulated in Scotland, there is no active or effective regulator as is required (section 18 Health and Safety at Work etc. Act 1974, HSWA). Patient safety in Scotland is the highest area of risk covered by UK-wide law and there is no active let alone effective regulator. The Scottish judiciary and justice system does nothing. The absence of the law and of regulation allows about 2,000 reasonably preventable premature deaths a year in Scotland (in line with Department of Health estimates). This is in healthcare and related social care. This is usually the fourth biggest cause of deaths in Scotland and it is the one covered by the law. In 2020, the healthcare acquired COVID-19 deaths (care homes, or infected whilst in hospitals) will make it the third biggest cause of deaths in Scotland. Yet the Lord President is inactive in upholding the law that would have prevented these deaths. The Scottish judiciary fails to deliver justice and in effect perpetuates the offences, and so the underlying cause of these deaths. This is not a functioning justice system. 19. The absence of the protection of human rights in Scotland under the all-Europe and overriding and binding ECHR places the UK in breach of international law. It also triggers an intervention by the Secretary of State for Scotland (SoSS) under section 58 Scotland Act 1998. This is to direct the Scottish First Minister to restore ECHR compliance. The Lord President presides over what is almost certainly the worst breach of ECHR in Scottish and UK history.
20. Justice is denied. The justice system fails all the tests of being a functioning justice system. It is not lawful nor is it competent, it fails to uphold the law, it does not give the people of Scotland the protection that it is entitled to, it is not independent, it fails to prosecute where it should, it takes trivial cases and wholly disregards major ones, it is sub-glacial in its speed meaning that lessons are not learnt (justice delayed is justice denied) and lives are not saved. It fails to operate a codified system on prosecutions meaning that they are not targeted, proportionate, transparent; they lack a logical/ scientific approach so making it look and be rank amateur. It does not have the sound foundations of a justice system, its decision-making process is neither public nor rational, it often appears little more than the throw of a dice as to who gets prosecuted and who does not, and whether the suspect are friends of the government or not. The Alex Salmond case could be referenced. In law we have the current First Minister Nicola Sturgeon as head of the government containing the Lord Advocate, prosecuting the former First Minister Alex Salmond. Irrespective of the merits or demerits of the case that is reducing the justice system to absurdity. That is how unlawful and bizarre the Scottish justice system is. It gives the justified appearance of chaos. It justifies no confidence. Written into ECHR judgement is that justice must be seen to be done, here the system and its outcomes lack credibility. The justice system is wholly scuppered by being wholly unlawful. It seems to get everything wrong that it possibly could get wrong. It has no lawful or constitutional compliance.
21. There is not the justice for the victims of crime, nor in the investigation of deaths. The systems here are completely unlawful as well as lacking competence. They are an insult to the people of Scotland. They treat the public with disrespect, and of lives in Scotland being treated as cheap. In its attitude the justice system adds to its unlawfulness by its failure to uphold the law and in its disregard of the people who it must serve by the objective delivery of justice. The ‘system’ of investigating deaths is a stain on Scotland. It does not even get out of the starting blocks with many reportable deaths not even being reported. We are the only place of significance in the Englishspeaking world without a coroner. Even the Wizard of Oz and Munchkinland has a coroner, the coroner system is the norm. It works. The FAI system is of negligible worth, it is unlawful and almost never produces anything of value. Compare that with the internationally well-respected and productive coroner system.
22. The justice system is fundamentally unlawful; the errors are extensive, and the consequences of the failures are as high as they can be. The failures mean that justice is not delivered, the people of Scotland do not get the protection that the law entitles them to be given, the Scottish judiciary fails them. With their inaction in healthcare and patient safety a very large number of preventable deaths and major harm are the consequence. With the errors the justice system could collapse in many ways and some could occur at any moment. Any prosecution by the Scottish Government could lead to the collapse of the justice system. After finding 30 different ways we lost count, this is when one would be excessive. Whilst well aware of the issues, the Lord Advocate and the Scottish Government demonstrate no recognition of them or inclination to address the clear and immediate danger. Nor apparently does the Lord President in presiding over such a fragile or brittle structure. We wrote to the Lord President, Lord Carloway (05 January 2021) but in his reply he seems to be saying that ‘it is not my job’. It is, section 2 Courts and Judiciary (Scotland) Act 2008), in law, constitutionally, and organisationally. This matter now has had to go beyond the Lord President.
23. Without a lawful or constitutional justice system Scotland would be a failed state.
24. Whilst our primary concern is the absence of law, in compliance, and regulation in protecting the safety of patients in Scotland, the system failures apply to other areas of the law. It applies to the failure to uphold human rights law, to the basic failures of the government to uphold the law, and to the absence of a functioning justice system. There are the underlying fundamental problems.
25. Within the Scottish Government’s unlawful systems of prosecution system and of investigating deaths, COPFS is specifically not a lawful body. Neither is it technically competent. COPFS is a ministerial-led government department, it is staffed by government officers. By law prosecution services cannot be the government. A lawful prosecution service must be headed by someone who is independent of the government such as a Director of Public Prosecutions, a DPP. The service also cannot be part of the government (e.g. compare with the lawful Crown Prosecution Service, CPS). Its staff also should not be government officers, they should not be civil servants but 6 have an independent status. COPFS does not even comply with the Judiciary and Courts (Scotland) Act 2008 in the statutory requirement that all involved in judicial processes are independent. This is a repeat breach of the Constitutional Reform Act 2005 and binding ECHR and its attendant judgements.
26. COPFS lacks competence in the basics of the law and the specifics of how it applies to patient safety. Regrettably, this also applies to the Scottish law officers who head it. Patient safety deaths account for about 2,000 a year in Scotland. These are ‘reasonably preventable premature deaths ‘(RPPD) which by UK-wide law must be prevented. The Scottish Government failed and refused to implement the law. We even had the previous Lord Advocate the Rt Hon Frank Mulholland QC writing that it was not his job to advise the government on this when he is the principal legal adviser. It most certainly is his job. He refused to do his job. He is now a senior judge. The current Lord Advocate confessed to the Holyrood Health Committee that he is not competent in health and safety law (in answer to Mary Fee MSP). His head of prosecutions, the Crown Agent David Harvie then demonstrated that he was not competent in the law either. A consequence is that when coronavirus came, with the ignorance of the law, the government’s legal adviser, the Lord Advocate failed his government. Worse, he failed the people of Scotland. He was party to the Scottish Government’s unlawful policy of sending out untested or positive NHS patients into care homes. That was extremely unlawful and reckless, criminally negligent. The consequences would be hundreds more deaths, many more RPPD in 2020. The law requires that the government has competence in health and safety law, but it plainly does not (e.g. as required by Regulation 7 Management of Health and Safety at Work Regulations 1999). Patient safety deaths are usually the 4th biggest cause of deaths in Scotland. A difference from the first three causes is that patient safety deaths are reasonably preventable, they are covered by the law, and the law requires their prevention. Yet COPFS takes almost zero prosecutions, and there is no other legal enforcement action. The bigger the issue the less likely it is that COPFS will act. They stand the law and public safety policy on its head..
We had a specific case of a hospital death involving Acute Kidney Infection (AKI). These deaths are often preventable and caused by the basic lack of hydration. They will account for about 400 deaths in Scotland every year. When asked what the COPFS officer heading the unit was going to do he gave a blank look and when pressed said he would do nothing. His inaction in effect condemned many people in Scotland to their unnecessary deaths, year-in year-out. That is the human consequence of COPFS criminal incompetence (e.g. breach of section 3(1) HSWA 1974). Having regulated all UK sectors, including government, police, and courts, and been a lawful Crown Prosecutor (unlike COPFS), the author had never seen such a failing organisation, and with such vast consequential harm to the public. In terms of the absence of competence and legitimacy they are now likely to be superseded by the Scottish judiciary.
27. All deaths in the UK related to work activities are covered by binding protocols on how they must be investigated. They apply to both the deaths of workers and of those related to how work activities are carried out, e.g. the Glasgow bin lorry disaster, and to the many patient safety deaths. The protocol involves the UK-wide regulator HSE, the police, and the prosecution services – here it is the government’s COPFS. In Scotland the protocol is almost never followed on public safety deaths. It was not followed in the bin lorry disaster. It was not followed in the high-profile policerelated deaths of Sheku Bayou (eventually became a public inquiry), Lamara Bell (now an unlawful COPFS prosecution of the Chief Constable). It was not followed with Millie Main and many other hospital acquired infection deaths at Greater Glasgow and Clyde NHS, or on the large number of hospital acquired infection deaths across NHS Scotland. It is routinely not followed on patient safety deaths, often or generally the deaths are not even reported to COPFS. When they are COPFS almost never involve HSE despite the protocol. In the last year, NHS Scotland have not been reporting COVID-19 deaths or incidents to HSE as required by law (RIDDOR) (e.g. publicised Ayrshire an Arran NHS large outbreak cover-up). This means that public safety deaths are not properly or lawfully investigated in Scotland. COPFS in effect shields its own government and sister organisation NHS Scotland (here the NHS is part of government, unlike NHS England).28. The Scottish Government unlawfully controls the police. It is unlawful for the government to control the police but as is par for the course, it disregards the law. It can do so with impunity because it controls the prosecution system. The Lord Advocate and the Solicitor General are always Scottish Ministers, they are always part of the Scottish Government, and they act on advice and information from a government department COPFS. There is even the specifics of the Police and Fire Reform (Scotland) Act 2012 where section 5 prohibits Scottish Ministers from directing police investigations, there are no exemptions. The instructions from the law officers are unlawful but the Chief Constable acts on them; he is only required to act on lawful instructions. In 2012 the Scottish Government reduced the number of police forces in Scotland to just one, Police Scotland. Despite it being explicitly and knowingly unlawful, the government continues to control police investigations. This places Scotland well into the police state spectrum. There is just not the required competence in the law or constitution to prevent this madness in public administration.
29. The failings in the Scottish justice system are part of the biggest error in Scottish and UK legal history. Try finding something bigger. In the wider setting the unlawful prosecution system, the unlawful system of investigating deaths, the unlawful Scottish Ministers controlling a state police force, and an unlawful government-dependent judiciary are parts of a bigger error. This is the absence of the separation of the powers in Scotland which in turn was caused by an absence of legal competence, and an isolated justice system, with no (competent) checks on whether it upholds the law or delivers justice. It does not. It is in a hopeless state; it needs a reset from the very basics.30. Twenty years of an unlawful justice system wrecks the reputation of the Scottish legal system. Five-hundred years gone. However even the reputation it had does not seem to have been based on any objective determination of whether it upheld the law or delivered justice. The reputation seems to have been based on judging itself and self-promotion. Currently our justice system would finish near the bottom of a European justice league, in some categories Belarus scores better. 31. The separation of the powers is required to comply with the binding ECHR (all 47 countries of Europe, including the 27 of the EU). The requirement of separation is not explicit, but it is not possible to comply with ECHR without it. No separation means it’s unlawful. This unlawfulness and active removal of the separation of the powers came from the Scotland Act 1998. The Act gave the control of judicial processes to the Scottish Government. It removed their independence and placed them in control of the government of the day. The Scottish judiciary carried on as if they had not noticed or cared. The Act was drafted in Scotland. It would need to be checked but it was stated that it was drafted by the then Scottish Office. This would be by the Scottish law officers, the Lord Advocate and the Solicitor General. (This may be Lord Hardie and Lord Boyd respectively). That the Scottish law officers could make such a monumental error shows a complete failure to understand the basics of the law and the written but not codified constitution. Anyone with basic reading and comprehension and awareness can see that giving the control of legal processes to the government is very wrong. Then add basic legal knowledge and it is seen to be a pit of unlawfulness. The wreck of the Scottish justice system came from sub-schoolboy errors, an absence of basic legal competence. It was allowed to continue due to the isolation of the Scottish justice system, its isolation from other justice systems. This includes the absence of due-diligence tests that it was ECHR-compliant lawful, constitutional, functional, and protected from corruption. The UK Supreme Court could assist. The draft Scotland Act was rushed through Westminster with inadequate consideration. There were some concerns as the bill progressed. The late Lord Clyde expressed concerns that ‘We may have launched a Titanic doomed to disaster’. Twenty years later and the iceberg has struck below the waterline. The construction and subsequent operation were fundamentally unsafe. There is suggestion that the most senior judges in Scotland were and are aware of the problem and have expressed some concerns but clearly they have done nothing to correct the unlawful justice system. It is amazingly easy to spot the above failings and other significant errors in the Scotland Act 1998. How they have continued for so long is a testament to something, but what?
32. The Scottish justice system is a model of how not to do a justice system. It is not lawful; it is in breach of ECHR and much other law. It is not constitutional in that in removes the separation of the powers. It inevitably cannot be functional, it being unlawful and unconstitutional, this is aggravated by the absence of legal competence on basic and technical legal matters. The government controls the securing of evidence both in its unlawful control of police investigations and the government’s prosecution department COPFS. The single police force is under control of the government, a characteristic of a police state. The government controls the process and most of the content of courts cases, thereby having almost complete control of the outcomes of the Scottish justice system. It lacks a codified system of operating. It is corrupt, as in wrong. It is also open to ‘conventional corruption’. It facilitates corruption, it actively encourages the Scottish Government acting corruptly. Which ministers apparently duly engage in, such as in the cover-up of patient safety deaths and circa two thousand of the COVID-19 deaths related to its failings. The required checks and balances are either wholly absent or not functioning. It has not been subject to any external independent competent audit to determine if the justice system upholds the law and delivers justice; it patently does not. If you wanted to know how not to do a justice system, the Scottish justice system would be a case study in getting everything wrong. It is a massive disaster in public administration.
33. All three branches or ‘limbs’ of government in Scotland have completely failed to identify let alone address the obvious fundamental failings in the Scottish justice system. The Executive (Scottish Government), the Legislature (Scottish Parliament), and the Judiciary have all completely failed. It sets a dangerous precedent that such an unlawful and unconstitutional failure has continued for twenty years. The three limbs perpetuate the failures and absence of protection and justice for the people of Scotland. The Scottish care home COVID-19 disaster is only the most visible consequence.
34. There is the ‘4th limb’, the Scottish media that is meant to be a further check on government. This it has failed to do. This is also a concern that in what is a fairly small country as Scotland that such matters exist, and that the media do not investigate let alone publish on the underlying fundamental problems. The coverage is superficial such as on the Salmond case and Pan Am 103, and in the occasional patient safety death. That allows the failures to continue and the harm to be repeated rather than stopped. As to why the Scottish media do not address the underlying issues is damaging to Scotland. It could read that the issues appear ‘too big’. But that allows the harm, the deaths to continue, the absence of justice and failures in government to continue. It delays the inevitable, and at great cost. The levee will break, it is a case of when and how?
35. Beyond Scotland, if it cannot or will not address the issues then it is for the UK Government, the UK Supreme Court, and the still applicable European Court of Human Rights (ECtHR). Four years ago ASAP-NHS pointed out the problems to the Secretary of State for Scotland (SoSS). This was on the systematic failures of the Scottish Government on ECHR compliance and related matters. These matters such as the absence of a lawful justice system and protection of human rights also placed the UK in breach of international law. Under section 58 Scotland Act 1998 the SoSS can direct the Scottish First Minister to restore compliance with ECHR. This he failed to do. The matters have since greatly escalated. Given the primary importance of the matters, the power to direct becomes one of compulsion. Cannot have Scotland without a lawful justice system and many other related public safety law problems. Scotland currently does not meet the requirements of being ‘a lawful land’, incredibly it is a land without the Rule of Law. Whilst the Scottish judiciary are acting as if they are asleep at the wheel.
36. The problem of an unlawful Scottish justice system lies with the competences and resources. There has not been the resource of competence to see what is required of a lawful and constitutional justice system. What we have is patently not such a system. As we point out, anyone with basic reading and comprehension skills who gives it a moment’s thought can see it is very wrong. Anyone reading the Scotland Act sees under section 44 that the Lord Advocate and his deputy the Solicitor General are part of the Scottish Government. A few sections later, section 48 states that they head the systems of prosecution and the investigation of deaths. There are no exemptions, they are always the government. The two law officers constantly break section 48(5) by always acting on advice and information from the government department COPFS. They never make their decisions independently of any other person. Even if they were to, they are still the Scottish Government. ‘Everyone knows’ you cannot have the government running judicial processes, that approach went out of favour in the West after the fall of the 3rd Reich. In effect our current Scottish system was made unlawful in 1953. This was with the UK being a lead driver and signatory of ECHR across most of Europe. It is that basic, anyone who knows a bit about the law knows that it is not only ‘wrong’ but that it is extremely unlawful. It breaks a whole raft of law, both statutory and common law, Scots law, UK law, international law, natural law, and natural justice. If the Scottish legal profession cannot see the unlawfulness of this or address it, then what hope is there for the profession?37. The absence of competence in the law includes ECHR, the statutory law of Scotland Act 1998, the Human Rights Act 1998, the Police and Fire Reform (Scotland) Act 2012, the Constitutional Reform Act 2005, the Judiciary and Courts (Scotland) Act 2008, and the Health and Safety at Work etc. Act 1974. The Scotland Act 1998 in removing the separation of the powers caused multiple breaches of ECHR (Articles 1, 2, and 6) and created breaches of natural law and natural justice. It created a government and ministers outside the rule of law. The Act was and is ultra vires. The consequence of an act being ultra vires is that it is deemed null and void. There can be the question of whether the defect in law is of ‘substantiality’. In this case it could hardly be more substantial. For example it created an unlawful government, justice system, and judiciary. The consequence of the Act being ultra vires is that the entire content of the Scotland Act 1998 has no lawful existence. That is what the Scottish law officers created. None of the checks and balances picked up on it. Anyone who produces legislation that creates a new parliament needs to take care in its production and particularly to make sure that it complies with the law. The consequences of the failures are rather large. All the acts of the Scottish Parliament and its justice system can be subject to question, and in many cases legal challenge.
38. With the unlawful and unconstitutional justice system there are a vast amount of its outcomes that can be formally challenged. In a word of the year 2020, the situation is wholly ‘unprecedented’. There have been all the deaths that have not been handled lawfully in the last twenty years. How are they to now be lawfully handled and justice delivered, such as for the families in the 2,000 a year patient safety deaths? There are the hundreds of deaths from COVID-19 in care homes due to the Scottish Government’s unlawful policy that need an independent investigator and prosecutor. There are hundreds more of those who were unlawfully infected with COVID-19 whilst in hospital and then died. There are the deaths in the Glasgow bin lorry and the Clutha helicopter disasters as the highprofile representatives of thousands of others. What of all the prosecutions carried out by an unlawful prosecutor? What of the cases that should have been taken but were not? And by an unlawful prosecution service, and a police force acting under unlawful direction from the government? Are 10 all convictions of the last twenty years to be deemed null and void? Prosecutions by the government are automatically unlawful under ECHR and much other law. Or do all the decisions need to go to judicial review? Or appeal? Of course given the unlawful standing of the justice system and lack of legal competence, it may well be that the current system of judicial review and appeal fail to pass the legal tests. Then there are all the issues that arise from the ultra vires act creating a government and parliament outside the law. There will be the question of whether any acts of a parliament unlawfully created have any validity. The situation could hardly be worse.
39. There has never been a competent independent audit of the Scottish justice system. There has been no test of whether it upholds the law and delivers justice. It demonstrably does not, it would fail all the tests. It is a complete set of the emperor’s new clothes. Its defensive posture has been the call of ‘Scots law’, this when it does not even comply with Scot’s law on the basic principles. Secondly it fails to account for all the UK, EU, and ECHR law that has applied. The later law now dominates within the law of Scotland. This failure to account for the changes to the law and the much-changed environment is characteristic of the boiled frog syndrome. All significant systems should be subject to external review. Something as important as a justice system should be a top priority, and there has been nothing. This is a staggering failure of public administration. It is like there is a fear of challenging the judiciary. As this shows they are not infallible, they are still required to be subject to the law, and must be accountable to it. On something as important as a justice system it is imperative. The isolated culture of the Scottish justice system has led it into this disastrous chasm.
40. With the fundamental failures the number of cases to illustrate the failings will be practically infinite and examples added to daily. Here is a brief selection of examples:
40.1 Patient safety deaths and major harm: ‘40 Suspicious Deaths at Ayrshire and Arran NHS’, ‘One Patient Safety Death Every Four Days at Greater Glasgow and Clyde NHS’, ‘100 Serious Incidents in 100 days at Lothian NHS’, ‘Surgical Infections and 200 Heart Patients at Edinburgh Royal Infirmary’, ‘Rogue Surgeon at Tayside NHS’.
40.2 Pan Am 103: Irrespective of the content of the evidence the trial broke Scots law, UK law, and international law, ECHR. The harmed party was the Scottish Government, the prosecutor was the government minister the Lord Advocate, and the government’s COPFS also controlled the police and the gathering of evidence. They as the government controlled what evidence was selected and what it chose to give to the defence. The government uniquely abolished the Scottish jury system for this trial. The Scottish Government selected the judges. The judges here form a very small pool with a singular culture, one which sanctions such an unlawful justice system and government control. The whole process of the Pan Am 103 investigation, trial, and conviction was under the control of the Scottish Government. The ‘Last King of Scotland’, Idi Amin could hardly have done better, it is that farcical. Pan Am 103 does however give an international profile to the defects of the Scottish justice system. At the time of the trial, the lawyer Nelson Mandela pointed out that it was unlawful.
40.3 In the Clutha case we even have the Lord Advocate investigating the crash of a Police Scotland helicopter when he unlawfully directs Police Scotland operations. No further comment needed on the conflict of interests. It would be difficult to make this up.
40.4 The Glasgow bin lorry disaster was followed by its own legal disaster. After the following day’s tea and biscuits meeting of COPFS, Police Scotland, and HSE, the Lord Advocate and COPFS disregarded the work-related deaths protocol. COPFS excluded HSE and then went on to completely fail to properly investigate the disaster. This is confirmed in the Fatal Accident Inquiry transcripts. The sheriff did not even know how health and safety law applied! HSE did not put him right. In 11 mid-FAI, ASAP-NHS pointed it out to him -such as the driver’s section 7 HSWA 1974 responsibilities. The sheriff continued to ignore the main law that applied. The court transcript shows that HSE was not involved in the investigation or decision-making. HSE said it was not informed by the Lord Advocate of his decision not to prosecute anyone. That included under HSWA. The Lord Advocate made his decision not to prosecute under HSWA when there had been no HSE/HSWA investigation. The Lord Advocate seemingly was in major breach of the law and did not follow due process. We understand (from the BBC and Police Scotland) that the driver was never interviewed, and particularly not under HSWA 1974. There has still not been a lawful investigation into the disaster and deaths. The author has lawfully investigated a bin lorry fatality with a HM Coroner and a police force. Repeated cases show that the judiciary in Scotland do not even have a basic grasp of health and safety law let alone the detail. In another case a senior police officer thought that HSWA lacked validity in Scotland because it was UK law! There was a rush to the bin lorry FAI when if it happens it is usually at sub-glacial speed. What conversation took place between the local MSP as the First Minister and the Lord Advocate on the conduct of the investigation? Irrespective there should not be the justice system that facilitates and encourages corruption. Any conversation on the investigation, FAI, or possible prosecution would almost certainly have been unlawful interference. It would be a breach of statutory-criminal law. Given the absence of what should be a prosecution and conviction of the driver, there needs to at last be a lawful investigation. Without even an attempt at prosecution and conviction under section 7 HSWA 1974 on such a disaster, it looks highly suspicious. On HSWA 1974 offences where deaths are the consequence the presumption was to prosecute and only back off if there were good reasons not to. With the bin lorry disaster, very few would regard justice as having been done or seen to have been done. It made the justice system look as if it did not know what it was doing; that perception was and is correct. The Glasgow bin lorry warrants a lawful competent investigation and prosecution. HSWA 1974 offences are not time-bound. The bin lorry disaster brought the Scottish justice system into further disrepute.
40.5 The government has repeatedly refused to implement the UK-wide law on patient safety, and the specific law on infection control (e.g. COSHH). ASAP-NHS has persistently pursued the First Minister, Health Ministers, and Justice Ministers over their unlawful behaviour. Their failures to implement or comply with the law costs about 2,000 deaths a year in Scotland and much other major harm. The law of HSWA solves patient safety; the law provides the means and the requirement to prevent these deaths. Their failure is also a dereliction of public duty and the most serious breaches of the code of conduct for their office. Under the ministerial code they also have collective responsibility for their rogue law officers. (The law officers do not have responsibility for their ministerial colleagues). The absence of law was really brought home with the COVID-19 Scottish care home disaster. The Scottish Government instructed its direct report NHS Scotland to send older NHS patients into care homes. This unlawfully was without ensuring that they had been tested and found to be negative (and all the other legally-required precautions). The government also sent hundreds of known COVID-19 patients into the homes. The coronavirus is in such a high hazard group that the dangerous pathogen cannot be allowed into care homes. It is very difficult to control it in hospitals. Anyone who gives it a moment’s thought would know that in a time of pandemic you do not ship patients into care homes without being sure that it was safe to do so. There was in any case a lot of spare hospital capacity at the time and it was an unnecessary move. It created many needless deaths rather than prevent them. The extremely unlawful policy was a consequence of the absence of legal competence in the Scottish Government. The government’s principle legal advisors, the Lord Advocate and the Solicitor General have demonstrated that they are not competent on patient safety law. The policy and actions were shockingly irresponsible and on current data much worse than in the rest of the UK. In the Scottish case the government by its repeated explicit refusal to uphold the law set itself up to fail on the safety of patients and care home residents. The Scottish ministers had been warned by ASAP-NHS in writing on the law on infection control several times.
It even warned on the risk and the application of the law to COVID-19 at the start of the pandemic (hospitals, care homes, and home care). The government ignored it, ignoring the law it is what they do, the disregard of public safety law is endemic. Hundreds of people in Scotland paid the price of the apparent criminal incompetence and criminal acts. It meets the criteria of being a major breach of criminal law by ministers and the government. They more than meet the UK-wide criteria for being prosecuted. There is no defence. We then had part two of the apparent gross criminality when the government’s Lord Advocate the Rt Hon James Wolffe QC announced his special investigation into his government-related deaths. ASAP-NHS pointed out to Mr Wolffe that by law he could not pass judgement on himself or his government. The deaths had to be investigated by an independent lawful investigator and prosecutor, and not his unlawful self. He carried on regardless, behaving unlawfully. He behaves as if the law does not apply to him, it does. Whilst currently he cannot be prosecuted by himself, he can be prosecuted as soon as he leaves office. Legally he cannot continue in office. By obstructing justice (and statutory offences) he renders himself liable to multiple criminal charges. The unlawfulness seems to know no bounds; it is a veritable anarchy. The absence of law, and its consequences for the people of Scotland are shocking. The law is not a detail, it is the thousands of reasonably preventable deaths a year. It could happen to anyone here; the deaths are so widespread that everyone in Scotland will know someone who has died as a result of the failure and refusal of the government to implement and comply with the UK-wide law on patient safety.41. The senior judges of Scotland also had concerns over the loss of the separation of the powers. After ten years of devolution there was a review by the Commission on Scottish Devolution (‘The Calman Commission’). Its purpose was ‘To review the provisions of the Scotland Act 1998’. Its report was published 15 June 2009. One issue was raised in section 5.29. Calman said it was not his job, section 5.37. So no review took place. It was very much the job of the Calman Commission, it was set up in March 2008 and had the following terms of reference: “To review the provisions of the Scotland Act 1998 in the light of experience and to recommend any changes to the present constitutional arrangements that would enable the Scottish Parliament to serve the people of Scotland better, that would improve the financial accountability of the Scottish Parliament and that would continue to secure the position of Scotland within the United Kingdom”. The Act having created an obviously unconstitutional Scotland (as the judges themselves pointed out) it was Calman’s role to address the fundamental issue of an unlawful judiciary and justice system. It failed, the commission got paid for the failure, and for perpetuating the unlawfulness. This is yet another massive failure in public administration.
The Judiciary of the Court of Sessions had made their submission. The judges recommended that the Lord Advocate should cease to be the head of the public prosecution system and should act only as the Scottish Government’s chief legal adviser. They noted various ways in which the Lord Advocate’s roles had caused problems for the judicial system, including the ability “to challenge… virtually any act of a prosecutor has led to a plethora of disputed issues, with consequential delays to the holding of trials and to the hearing and completion of appeals against conviction.” The judges proposed three alternative solutions: stripping the Lord Advocate of responsibility for prosecutions, exempting the Lord Advocate from compliance with the European Convention on Human Rights (!- Ed), or changing the law on criminal appeals. While not specifically favouring any of the three, they noted that the third proposal was radical enough to “generate considerable controversy”. The Commission seemingly disregarded the views of the Judiciary of Scotland. The Commission failed to address this major problem and so sanctioned the absence of the separation of the powers in Scotland and the avalanche of errors and consequences that come from it. The Commission failed on the fundamental matter of reviewing and ensuring that the Act was lawful and constitutional. It failed to ensure that the Act was functioning and particularly on justice, policing, government, and parliament. In comparison the Commission dealt with relatively trivial matters. Remarkably the Scottish judges left it at that. They continued to operate what they knew to be an unlawful, and unconstitutional justice system. They knew that the Scottish justice system did not comply with European Convention on Human Rights. The Scottish judges knew that the Scottish justice system was unlawful, and that thereby with their role in it that they were also unlawful. At this stage words should fail. The Scottish judges have since devolution (even allowing for transitional arrangements) operated an unlawful justice system. It must be with mens rea. Since if any judge did not realise that the government controlling judicial processes was unlawful it would show their absence of competence in the law and so their absence of fitness to be a judge. It is Catch 22.
42. There are solutions to give Scotland a lawful, constitutional, and functioning justice system. It has no future as it stands. What cannot be done is to solve the legacy issues of twenty years of an unlawful justice system. An urgent and essential step is to amend and reconfigure the Scotland Act 1998 to restore the separation of the powers. The control of the systems of prosecutions and the investigation of deaths must be removed from government. The independence of the judiciary must be restored. It needs a wholesale systematic external independent competent review of the Scottish justice system. There are off-the-shelf functioning justice systems that could be used and adapted to the Scottish situation. There are underlying problems relating to how the problem arose and how it continued for twenty years. One aspect is the absence of legal competence which should be a major concern, it begs the question of what the legal profession and the law schools have been doing these last twenty years if they could not see such basic failings. It needs no great intelligence or legal knowledge to see the failings. Again there is no defence.
Conclusion The Scottish judiciary and the Scottish justice system are not lawful or constitutional. They do not uphold the rule of law. Nor do they lawfully deliver justice.
Shared as a witness for the perfection not selection of humanity.